92 Decision Citation: BVA 92-04897
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 90-44 156 ) DATE
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THE ISSUE
Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for a
psychiatric disorder.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
F. Judge Flowers, Associate Counsel
INTRODUCTION
This matter came before the Board on appeal from a rating
decision of the Jackson, Mississippi, Regional Office
(hereinafter RO). The veteran served on active duty from
May 1942 to September 1943. His claim of entitlement to
service connection for a psychiatric disorder was previously
denied by the RO in a rating decision dated in April 1979
and a timely appeal was not initiated. The veteran
subsequently sought to reopen his claim and, in a rating
decision dated in May 1990, his claim was again denied. The
notice of disagreement was received in June 1990. A
statement of the case was issued in July 1990. The
substantive appeal was received in August 1990. In a
decision dated in December 1990, the veteran's claim was
remanded for additional development. The requested
development was completed and a supplemental statement of
the case was issued in August 1991. The case was received
and docketed at the Board in December 1991. The veteran has
been represented throughout his appeal by the Disabled
American Veterans. That organization submitted additional
written arguments to the Board in January 1992. The case is
now ready for appellate review.
CONTENTIONS OF APPELLANT ON APPEAL
It is asserted that the veteran developed a psychiatric
disorder as a result of active military service. It is
contended that when examined for entrance onto active duty
the veteran was normal psychiatrically and that a
psychoneurosis was first diagnosed more than a year
following the veteran's entrance onto active military
service. The veteran states that his private physician has
determined that his current psychiatric disorder is related
to his military service. It is essentially contended that
additional evidence submitted is new and material.
DECISION OF THE BOARD
For the reasons and bases hereinafter set forth, it is the
decision of the Board that the preponderance of the evidence
is against the veteran's claim for service connection of a
psychiatric disorder.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained by the
agency of original jurisdiction.
2. The evidence submitted in support of the application to
reopen is "new" and "material".
4. A preexisting psychiatric disorder did not increase as a
result of active military service.
CONCLUSIONS OF LAW
1. The evidence submitted to reopen the veteran's claim for
service connection of a psychiatric disorder is "new" and
"material." 38 U.S.C. 5108 (formerly 38 U.S.C. 3008);
38 C.F.R. 3.156(a).
2. The April 1979 rating action denying service connection
for a psychiatric disorder is reopened. 38 U.S.C. 7105;
38 C.F.R. 3.104(a), 19.129(a).
3. A psychiatric disorder was not incurred in or aggravated
by active military service and a psychosis may not be
presumed to have been incurred therein. 38 U.S.C. 1101,
1110, 1111, 1112, 1113, 1137, 1153, 5107; 38 C.F.R. 3.306,
3.307, 3.309.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The RO's decision in April 1979 denying service connection
for a psychiatric disorder was not timely appealed within a
year and became final. For the claim to be reopened, new
and material evidence must be submitted. 38 U.S.C. 5108;
38 C.F.R. 3.156(a). In this case, the additional evidence
submitted in support of the veteran's application to reopen
consists of a private medical report dated in February 1990
and the report of a VA examination conducted in January
1991. After reviewing the record, we conclude that the
additional evidence which the veteran has submitted is "new"
and "material" since the additional evidence is relevant and
probative and since there is a reasonable possibility that
the additional evidence, when viewed in the context of all
the evidence, both new and old, would change the outcome.
Accordingly, the veteran's claim is reopened and will be
considered on a de novo basis.
We note that we have found that the veteran's claim is "well
grounded" within the meaning of 38 U.S.C. 5107(a). That is,
we find that he has presented a claim which is plausible.
We are also satisfied that all relevant facts have been
properly developed. Of record are the veteran's service
medical records, the report of a private medical examination
and the report of a VA examination conducted in January
1991. There is no indication that there are additional
records which have not been obtained. No further assistance
to the veteran is required to comply with the duty to assist
him as mandated by 38 U.S.C. 5107(a).
The veteran's service medical records reveal that, when
examined for entrance onto active military duty, he was
found to be normal psychiatrically. In August 1943, the
veteran was seen because of complaints of nervousness. He
was hospitalized and evaluated by a service medical board
which made a diagnosis of psychoneurosis, hysteria,
manifested by nervousness, emotional immaturity and
instability. The veteran was reported to have had a history
of the symptoms for a period of many years and the medical
board determined that the disorder existed prior to service
and was not aggravated as a result of active military
service. Since the history provided by the veteran was for
treatment purposes, it is highly credible and sufficient to
rebut the presumption of soundness at service entry.
The issue, therefore, for consideration is whether the
preexisting psychiatric disorder was aggravated as a result
of active military service. An increase in the preexisting
psychiatric disorder is not established in this case as
evidenced by the fact that there is no further objective
medical evidence of a psychiatric disorder upon separation
from service to the 1990's, more than 46 years later. While
it is noted that the veteran when taking a vocational test
in 1947 was reported to have symptoms suggestive of definite
paranoid tendencies and deep feelings of inadequacy and
depression, there is still no clinical evidence of
psychiatric manifestations from that time to the 1990's
which is a span of more than 40 years.
Although Dr. Alberton, in February 1990, opined that the
veteran's anxiety disorder is of service origin, his opinion
is based upon history provided by the veteran at a time that
the veteran had reapplied for compensation. It is not
otherwise corroborated and is of limited probative value,
especially in light of the veteran's poor memory due to
dementia. Additionally, we note that an acquired
psychiatric disability was not diagnosed on VA psychiatric
examination in January 1991. Significantly, there is also
evidence of record that the veteran was apparently able to
work for 37 years in his job as a railroad worker without
difficulty. The Board, therefore, concludes that the
preponderance of the evidence is against the veteran's claim
for service connection of a psychiatric disorder. 38 U.S.C.
1101, 1110, 1111, 1112, 1113, 1137, 1153, 7105; 38 C.F.R.
3.306, 3.307, 3.309.
ORDER
Service connection for a psychiatric disorder is denied.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
M. CHEEK THOMAS J. DANNAHER
EUGENE A O'NEILL
CONTINUED ON NEXT PAGE
FOTICE OF APPELLATE RIGHTS: Under 38 U.S.C. § 7266 (1991),
a decision of the Board of Veterans' Appeals granting less
than the complete benefit, or benefits, sought on appeal is
appealable to the United States Court of Veterans Appeals
within 120 days from the date of mailing of notice of the
decision, provided that a Notice of Disagreement concerning
an issue which was before the Board was filed with the
agency of original jurisdiction on or after November 18,
1988. Veterans' Judicial Review Act, Pub. L. No. 100-687,
§ 402 (1988). The date which appears on the face of this
decision constitutes the date of mailing and the copy of
this decision which you have received is your notice of the
action taken on your appeal by the Board of Veterans'
Appeals.